On Point blog, page 1 of 1
SCOW: Oath or affirmation of officer on warrant is a matter of substance, not form
State v. Jeffrey L. Moeser, 2022 WI 76, 11/23/22, affirming an unpublished court of appeals decision; case activity (including briefs)
The Fourth Amendment requires that warrants shall not be issued except upon probable cause “supported by Oath or affirmation.” The officer who applied for a warrant to draw Moeser’s blood after an OWI arrest made no oral oath or affirmation before signing the affidavit in support of the warrant or before the judicial officer who approved the warrant. (¶8). But that doesn’t make the warrant invalid, because oath or affirmation is a matter of substance, not form, and it’s clear that the officer manifested an intent to be bound by his statement under circumstances that emphasize the need to tell the truth.
Affidavit in support of warrant for blood draw was supported by oath or affirmation
State v. Jeffrey L. Moeser, 2019AP2184-CR, District 4, 6/24/21 (not recommended for publication); PfR granted 11/17/21; affirmed, 2022 WI 76; case activity (including briefs)
Over a dissenting vote, the court of appeals holds that, under the facts of this case, the affidavit in support of the warrant to draw Moeser’s blood was sworn to under oath by the officer and therefore the warrant was not defective.
COA: delay in McDonald’s order wasn’t a “seizure”; warrant didn’t require officer to invoke God
State v. Johnathan L. Johnson, 2019AP1398, 9/9/20, District 3 (not recommended for publication); case activity (including briefs)
Johnson was arrested for OWI in a McDonald’s parking lot. He’d ordered some food at the drive-through, and an employee had noticed his intoxication and called police.
No warrant, no affidavit, no worries. Failure to file suppression motion wasn’t ineffective assistance of counsel
State v. James Howard, 2013AP190-CR; 1/22/14; District 1; (not recommended for publication); case activity
Howard, a former correctional officer, was convicted of 2nd and 3rd degree sexual assault of an inmate at the Milwaukee County Criminal Justice Facility. On appeal he argued that his trial counsel was ineffective for failing to: (1) move to suppress buccal swab evidence obtained without a warrant, (2) move to suppress penile swab evidence because the warrant for it was not supported by an affidavit,
Warrants – “Oath or Affirmation” Requirement
State v. Wilton Tye, 2001 WI 124
For Tye: Mark D. Richards, Christy M. Hall
Issue: Whether evidence seized under a search warrant unsupported by oath or affirmation must be suppressed.
Holding: The requirement that a search warrant be supported by oath or affirmation is an explicit and long-standing feature of both state and federal constitutions, as well as legislation, and is essential to the warrant’s validity.